1 Avoiding copyright calamities A program of Carolina MLS and Triad MLS March 22 and 23, 2012 Presented by Brian N. Larson Larson/Sobotka PLLC
1
Avoiding copyright calamities
A program of Carolina MLS and Triad MLS
March 22 and 23, 2012
Presented by Brian N. Larson Larson/Sobotka PLLC
© 2011 Larson/Sobotka PLLC
Outline/agenda
• Welcome/introductions
• Copyright basics
• Ways brokers/agents get into trouble
• Ways others are using your listings (with or without your permission)
• Question and answer
© 2011 Larson/Sobotka PLLC
Introductions • Speaker – Brian N. Larson
– Attorney and consultant
– Adviser to MLSs, REALTOR® Associations, and real estate brokers in North America
– Named among 100 Most Influential persons in real estate by Inman News (2009, 2010, 2011)
• “Miranda” warning – Not legal advice
– Seek business and legal counsel
– Views are of presenter, not sponsors or clients
© 2011 Larson/Sobotka PLLC
Copyright basics
© 2011 Larson/Sobotka PLLC
Data: Who owns it?
• Probably a red herring.
• Copyright law affects.
• Privacy issues beginning to invade.
• Contract law affects.
• Other factors
© 2011 Larson/Sobotka PLLC
Rights of ownership
• Freedom to do certain things with the property.
• Power to exclude others from doing certain things with the property.
• Ability to enforce those rights
• Ability to sell („alienate‟) those
rights.
© 2011 Larson/Sobotka PLLC
Kinds of ownership in a listing
• Real property
– Settled: Seller, later buyer, owns
• Privacy rights
– Not settled
• Listing contract rights
– Settled: Broker owns (most places)
• Copyrights?
© 2011 Larson/Sobotka PLLC
Copyright protects
• “Original works of authorship”
• Creative expressions of authors
• NOT facts
• Not number of bedrooms, etc.
• Feature information?
© 2011 Larson/Sobotka PLLC
In listing data, copyright protects
• “Original” text: remarks, maybe
directions, maybe list price
• Photographs
– Digital or film
– No matter how ugly
• The “compilation”
• NOT FACTS
© 2011 Larson/Sobotka PLLC
Compilation
• Defined by statute:
– “selection, coordination, and arrangement.”
– Not the aggregated database.
– ~ data structure
• For example: Possible to register copyright in a compilation with no data or only sample data in it.
© 2011 Larson/Sobotka PLLC
What copyright protects on a listing
© 2011 Larson/Sobotka PLLC
Who owns: Authors • First owner of a copyright is the
author.
• Author secures copyright the moment the work is created.
• Generally, author is the human being who did the creating.
• Work made for hire.
– If an employee creates a work in the scope of her employment, the employer is considered the author.
– Work for hire doctrine otherwise only applies in very specific and limited circumstances.
© 2011 Larson/Sobotka PLLC
Who is the author of listing data content?
• Facts?
• Original text?
• Photographs?
• Compilation?
© 2011 Larson/Sobotka PLLC
Transfer of author rights
• Limited use = “license”
– Can be oral
– Can be implied
– Can generally be revoked
• Transfer = “assignment”
– Grant of everything
– Must be in writing and signed
© 2011 Larson/Sobotka PLLC
In most markets…
• Brokers don‟t have assignments
in independent contractor agreements.
• Agents don‟t sign anything with
the MLS.
• MLS application forms and subscriber agreements do not address copyright ownership.
– (If they do, they just claim MLS‟s ownership of the “compilation.”)
© 2011 Larson/Sobotka PLLC
In your MLS…
© 2011 Larson/Sobotka PLLC
So who is the owner?
• Facts?
• Original text?
• Photographs?
• Compilation?
© 2011 Larson/Sobotka PLLC
Ways brokers/agents get in trouble
• Copying stuff from the web
• Using professional photos beyond scope of license
• Copying other brokers‟ materials
© 2011 Larson/Sobotka PLLC
Copying stuff from the web
• Most images you see on the web ARE NOT free for your use
• The “cooler” an image is, the less likely you‟ll be able to use it without obtaining permission
© 2011 Larson/Sobotka PLLC
Example: Cattails
• Broker A takes a listing.
• It’s a hole in the ground
• There’s a lake. • It’s also a hole in the
ground. • Broker A goes online
and finds pretty picture of cattails.
• Broker A loads picture into MLS.
Photo Credit: Derek Jensen (public domain, Wikimedia Commons)
© 2011 Larson/Sobotka PLLC
Cattails continued
• Broker B displays listing on her IDX site
• Broker B gets nasty letter from Getty Images
– “That‟s our photo!”
– “You used without permission”
– “Pay $875 or we‟ll sue you”
• MLSs working to make sure that Broker A is on the hook…
© 2011 Larson/Sobotka PLLC
CMLS rules
• Section 1.22: MEDIA: The Listing Brokerage may submit photographs, virtual tours, PDF documents, text files and artist renderings (“Media”)…. The Listing Brokerage indemnifies CMLS in the event of any legal proceeding relating to the reproduction of the Media by CMLS or other authorized entities.
© 2011 Larson/Sobotka PLLC
You should avoid liability
• Use Wikimedia.
• Use Flickr Creative Commons images.
• License stock photos.
© 2011 Larson/Sobotka PLLC
Using Wikimedia
© 2011 Larson/Sobotka PLLC
Is Wikipedia photo available?
© 2011 Larson/Sobotka PLLC
Using Flickr
© 2011 Larson/Sobotka PLLC
Creative commons on Flickr
© 2011 Larson/Sobotka PLLC
Flickr CC results
© 2011 Larson/Sobotka PLLC
Stock photo supplier
© 2011 Larson/Sobotka PLLC
Stock photos
• Getty Images and others
• Seek royalty-free licenses
• Use a reputable provider
© 2011 Larson/Sobotka PLLC
Using stuff beyond your license
• How many hire a photographer for listings?
• Do you have a written agreement?
• Who owns the photo copyrights?
© 2011 Larson/Sobotka PLLC
Copying other brokers’ stuff
• MLS Rules
– Triad MLS
– CMLS
© 2011 Larson/Sobotka PLLC
CMLS rules • SECTION 1.22: MEDIA: …By
submitting Media to the MLS, the submitting Listing Brokerage grants the MLS and the other Member Participants and Subscribers the right to reproduce and display the Media…. Before a Member Participant or Subscriber copies the Media submitted by another Listing Brokerage to a new listing, the Member Participant or Subscriber must obtain the written permission of the owner of the Media.
© 2011 Larson/Sobotka PLLC
Ways others use your listings, or…
35
Where are are all my listings going?
(and why?)
Image: CC license Flickr/TobiasSchlitt
© 2011 Larson/Sobotka PLLC
Participants use listings
© 2011 Larson/Sobotka PLLC
Consumers use listings
© 2011 Larson/Sobotka PLLC
Business wants to use listings
Photo: CC license Flickr/Matthew Knott
© 2011 Larson/Sobotka PLLC
The flow of listings (simplified view)
© 2011 Larson/Sobotka PLLC
Your listings: Syndication
• Your MLS probably offers „syndication‟
• For most brokers first „syndication channel‟ was Realtor.com (late „90s)
• Others are possible now through ListHub or others
© 2011 Larson/Sobotka PLLC
Syndication defined
• No official definition
• Informal one
– Distribution in bulk
– Active real estate listings (listings currently available for sale)
– By or on behalf of the listing agent or listing broker
– To sites that will advertise them on the web to consumers
© 2011 Larson/Sobotka PLLC
Syndication ‘flow’
MLS
Syndicator
Examples:
ThreeWide Point2
Channel/
aggregator
Examples:
Realtor.com
Zillow
Trulia
Broker
Consumer
Display
© 2011 Larson/Sobotka PLLC
Syndication
• You can pick which sites your stuff goes to
• Or you can auto-subscribe
© 2011 Larson/Sobotka PLLC
http://www.listhub.com/channels.html
© 2011 Larson/Sobotka PLLC
…and more
© 2011 Larson/Sobotka PLLC
What it means to be ‘all in’
• Many brokers are „auto-subscribed,‟ meaning their listings go to ALL listed channels
• Beginning this year, they will go via the Real Estate Network, to national franchisor sites
– REMAX, C21, etc.
© 2011 Larson/Sobotka PLLC
Remember all those syndication channels?
• If you are authorizing them to advertise your listings
• You are responsible for how they do it
© 2011 Larson/Sobotka PLLC
Caution: Risks with syndication
• Your firm name or agent name may be stripped off the listing
• Your contact information may be removed
• Violation of license law and Code of Ethics
© 2011 Larson/Sobotka PLLC
Syndication: value
• What value do you get from syndicating to:
© 2011 Larson/Sobotka PLLC
Syndication questions for you
• Are these sites giving you value for your listings?
• Are these sites displaying your listings in a way permitted by law and the Code of Ethics?
© 2011 Larson/Sobotka PLLC
Syndicators and channels use listings with permission
• What if someone uses your listings without permission?
– State license law and Code of Ethics prohibit it
• What if that someone is not a real estate broker or REALTOR®?
– Copyright law?...
© 2011 Larson/Sobotka PLLC
Listing broker copyright claims
• Who owns the copyrights?
© 2011 Larson/Sobotka PLLC
What your MLSs do…
• Copyright registrations
• Manage syndicator relationships
• Perform research
• Cease and desist letters
• Usually not litigation (very expensive)
• Educate you
© 2011 Larson/Sobotka PLLC
Thank you!
I tweet: @BLarsonMpls
I blog: www.MLSTesseract.com